Resource Management Amendment Act 2013

On 3 September, the Resource Management Amendment Act 2013 was passed into law. This is the first of two Amendment Acts that the Government intends to introduce this year.

The Amendment Act implements a range of changes that were proposed in a Bill released in late 2012 and that was open for submissions earlier this year. The majority of the changes are intended to speed up and streamline existing process under the RMA. The main exception to this is the amendment to section 32, which could have a more significant impact on the decisions that are made in relation to plans and policy statements.

This article provides a brief overview of some of the key changes and their potential implications.

Process changes

Information requirements for resource consents

One area of change relates to the information that must now be provided with resource consent applications. The previous requirements in Schedule 4 have been replaced with a new schedule setting out a more comprehensive list of mandatory information, including:

all information requirements for the application, not just the Assessment of Environmental Effects

all information needed to reach a decision, including consideration of relevant planning instruments and Part 2 of the RMA

information to demonstrate that any permitted activities are in fact permitted

These changes place a greater onus on applicants to provide all the information upfront and are accompanied by an increase in time for councils to decide whether the requirements are met (up from 5 to 10 working days). This may result in a higher number of applications being rejected as incomplete, particularly given the limitations on further information requests, as discussed below.

Hearing process

Another significant change is that for any application that proceeds to a hearing, all expert evidence must be pre-circulated in advance. This will be a staged process, with the council planning report being released first, followed by evidence from the applicant and then any submitters.

The intention of this change is to avoid the uncertainty associated with evidence being presented on the day of the hearing and enable a more focussed and informed debate at the hearing itself. However, it will inevitably require more preparation in advance by participants, both in terms of preparing their own evidence and reviewing the evidence of other parties. Overall we see this as a positive change that should provide for better quality decisions and reflects a best practice approach that already occurs in many cases.

Time limits

The Amendment Act contains a number of changes to the time limits for processes under the RMA. The most significant of these is the introduction of total maximum time limits for notified resource consent applications, being 6 months for a fully notified application and 4½ months for limited notification (from lodgement to decision).

A related change is restrictions on the ability of a council to ‘stop the clock’ when requesting further information. The clock can only be stopped once before notification and not at all after notification.

These changes are in response to the Government’s dissatisfaction with the length of time it takes for applications to move through the resource consent process, with the current average being almost 9 months. Although the intent is clear, there is some uncertainty as to how effective these changes will be as councils still retain the ability to double the time periods under the RMA, even without the agreement of the applicant.

Direct referral

A number of amendments are also proposed to the direct referral process that was introduced in an earlier package of reforms. Currently councils have the discretion to determine whether or not a matter should be directly referred to the Environment Court or remain with the council. The Amendment Act removes this discretion where the value of investment in the proposal is likely to meet a threshold amount that will be specified in regulations (yet to occur). In this circumstance, the council must grant a direct referral request unless exceptional circumstances exist.

This change may increase the number of applications that are directly referred to the Environment Court as it removes the ability of councils to retain decision making control over certain applications.

Amendments to section 32

The biggest substantive change introduced by the Amendment Act is the amendment of section 32 of the RMA. This is one of the key sections of the RMA and sets out the evaluation that is required when considering the merits of a plan or policy statement. In basic terms, it requires consideration of the costs, benefits, and risks of a proposal and provides wide scope to take various considerations into account.

The Amendment Act replaces s32 with new wording that requires specific consideration of the opportunities for economic growth and employment that that are anticipated to be provided or reduced. In addition, it requires that the costs and benefits of the proposal be quantified if practicable.

These changes have been made to address what the Government sees as a lack of direction in the existing provisions. However, they have been criticised as favouring economic growth over environmental considerations and unbalancing the inherent balance within the RMA for sustainable development.

The changes will undoubtedly place a greater emphasis on economic evaluation when assessing the merits of a plan or policy statement. However, it remains to be seen whether or not this actually favours economic growth and development. In our experience, cost benefit analyses that attempt to allocate dollar figures to intangible values can often lead to unanticipated consequences and do not always provide support for a proposal despite the economic benefits it may provide.

What happens next?

The changes to section 32 come into effect three months after royal asset, being 3 December 2013. In addition, the majority of the process changes discussed above only into effect once an Order in Council is passed by the Government at a later date.

The purpose of this delay is to better align the timing of these changes with the broader package of reforms that the Government intends to introduce through a separate Bill later in the year (as discussed in our earlier article). However, at the time of writing, these broader reforms were proving very contentious, with the Government struggling to obtain the necessary support from other political parties. We will be keeping an eye on future developments and provide further updates as they come to hand.

Disclaimer: This is a brief summary for information purposes only and is not legal advice

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